Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

William Hay
v.
Robert Burnet

1682. March.

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Robert Burnet, who had a general disposition of all his father-in-law James Cockburn's effects, for relief of cautionary he stood engaged in for James, having, after James's death, received a bargain of victual, that had been bought by the defunct conform to a contract, and transmitted to Leith by the seller, who knew not of the buyer's decease; the seller pursued Robert Burnet for the price. Alleged for the defender, That the disposition to him, for an onerous cause, comprehended this bargain, emptio venditio being perfected solo consensu without tradition; and the seller had no hypothec for the price. The Lords found Robert Burnet liable, if the victual was delivered after James's decease, seeing it could not be properly in bonis [of James] before delivery.

This decision seems somewhat irregular; but it was considered that the pursuer was a minister, and the defender was the defunct's son-in-law, and a writer to the signet, who had only a general disposition, and no particular assignment to the bargain; Castlehill's Pratt. tit. Summons, No. 30.

Page 254, No. 899.